Swift v. Klein

Mr. Justice Phillips delivered the opinion of the court: The record in this case presents for our consideration a number of questions. One of the first matters to be determined is whether the 18th section of the Annexation act, heretofore referred to, had the effect of continuing in force the ordinances of the village of Hyde Park in respect to the licensing of saloons or dram-shops after its annexation to the city of Chicago. The legislature has provided by statute (Hurd’s Stat. chap. 24, par. 228,) that an ordinance relating to the prohibition or regulation of dram-shops, in force in a municipality which is annexed to another city, shall continue in full force and effect, unless such ordinance be repealed in the manner provided in such section. The enactment of an act of this character was within the power of the legislature. Where a municipality, generally of lesser dimensions and population, is about to be annexed to a larger, whereby its legal power to protect itself by ordinances of prohibition or regulation of dram-shop licenses might otherwise be taken from it and vested in a body which might disregard the wishes and thwart the will of the annexed district, it is a provision entirely proper and consistent that its desires, expressed by its ordinance adopted by the representatives of its people, be carried out by the larger district to which it is annexed. In this case the city of Chicago, with knowledge that the village of Hyde Park was about to be annexed to it and that certain restrictions regarding the issuing of dram-shop licenses were in existence there, and recognizing* the authority given by the act of the legislature in providing that such ordinances remain in force and be binding upon the city to which it was to be annexed, followed the act of the legislature by the passage of the ordinance heretofore referred to. It must be conceded without question that such ordinances, so far as they were otherwise not objectionable, became binding upon the city of Chicago. Whatever power or authority by virtue of such ordinances was legally invested in the town board of Hyde Park was succeeded to by the city council of the city of Chicago, and the power and authority before then vested in the president of the town board of Hyde Park became vested in the mayor of the city of Chicago. The question involving the construction .and validity of section 18 of the Annexation act, and its applicability to these particular Hyde Park ordinances, was before this court in the case of People ex rel. v. Cregier, 138 Ill. 401. In that case we found this statute to be valid, and that it had the effect of continuing in force these particular ordinances, so far as they were otherwise unobjectionable or might have been enforced by the proper authorities of Hyde Park before annexation. The seventh section of the ordinance of the village of Hyde Park set out in the petition provides that “the licensee shall not keep nor in any way be interested in any saloon or dram-shop at more than one place at the same time.” The provisions of this ordinance are reasonable. The municipal authorities have the right to presume that where a person is the keeper of or interested in only one dram-shop it will receive his personal attention to an extent it would not were he interested in more, and thus derive assurance of a more careful conduct and management of his business and a stricter observance of the laws enacted for its government and control. There may also be other good and sufficient reasons for such a provision, and we see nothing improper or unreasonable in such requirement nor is our attention called to any. It is always incumbent on one who seeks to have an ordinance set aside as unreasonable, to point out or show .affirmatively in what such unreasonableness consists. (People ex rel. v. Cregier, supra.) But nowhere in the petition nor in the amended petition does the appellee aver or show that he is not so interestéd in any other saloon or dram-shop. The writ of mandamus is one of the extraordinary remedies provided by law, and should never be awarded unless the party applying for it shows a clear right to have the thing sought by it done, and by the person or body sought to be coerced. In doubtful cases it should not be granted. The petitioner is bound, like the plaintiff in an ordinary case, to state a case prima facie good. (Springfield and Illinois Southeastern Railway Co. v. County Clerk, 74 Ill. 27.) .The party applying for mandamus must show, first, that he has a clear-legal right to have the thing which is asked for done; second, that it is the clear legal duty of the party sought to be coerced to do the thing he is called upon to do. (Chicago and Alton Railroad Co. v. Suffern, 129 Ill. 274.) “To entitle the relator to relief it must appear that the defendant is under a legal obligation to perform the act sought to be commanded, and every material fact necessary to show such legal duty must be averred in the petition.” (People v. Madison County, 125 Ill. 334.) For a failure to aver in his petition and to show that he did not keep nor was in any way interested in any other saloon or dram-shop, the prayer of the petitioner should have been denied. Other questions are presented in the record which go to the sufficiency of the number of names on the petition of appellee for license, but as it is admitted by the answer of appellant to the petition for mandamus that he believes the petition in that respect was requisite and conformed to the Hyde Park ordinances, we do not deem it necessary to discuss the question. For the reason indicated the judgment of the Superior Court in awarding the peremptory writ of mandamus is reversed and the cause remanded, with direction to dismiss the petition. Reversed and remanded.